Ted Olson

Theodore Olson, former Solicitor General under President George W. Bush, has signed onto Mississippi lawyer Paul Minor’s appeal to the Supreme Court.

On Tuesday, Olson, of Gibson, Dunn & Crutcher LLP, filed a motion for a 60-day extension to file a petition for certiorari. He said more time was necessary because that the “honest services” law,  to which Minor’s convictions are tied, is under review by the Supreme Court in three cases this term.

Minor’s convictions on honest-services-based mail and wire fraud charges stem from a major judicial bribery investigation. A well-known plaintiffs lawyer, Minor was accused of making campaign loans to two state judges in return for favorable treatment in his cases before their courts.

The court’s decisions in the three honest services cases under review, Olson wrote, will affect the validity of the Minor’s convictions and his request for relief.

Olson said a Supreme Court review was necessary to answer whether federal prosecutors were required to prove a quid pro quo in Minor’s case because the alleged bribes were in the form of “constitutionally protected campaign contributions.” A federal district court, as well as the U.S. Court of Appeals for the 5th Circuit, found that government need only prove the existence of a “corrupt agreement” under the honest-services statute.

The motion noted that Olson was “retained recently” to prepare the petition. If the court grants the extension, the cert petition would have to be filed by July 26.

The motion is embedded below.

Minor Extension Application (2)

We’ve written  about ”Kings of Tort: The True Story of Dickie Scruggs, Paul Minor and Two Decades of Political and Legal Manipulation in Mississippi,” a book co-authored by former Northern Mississippi Assistant U.S. Attorney Tom Dawson and conservative blogger Alan Lange about the judicial bribery scandal that sent several prominent trial lawyers to prison.

The book has created a stir in Mississippi; Dawson was still working for the government when he agreed to write it. Dawson retired in January and returned to the office on an usual contract basis until June.

Last week, a federal appeals last week court threw out bribery convictions against plaintiff’s lawyer Paul Minor and two former Mississippi judges, and the remaining counts against them could fall after the Supreme Court rules on the constitutionality of the honest-services fraud law.

While Dawson didn’t prosecute Minor — that case was headed by the Southern District of Mississippi – the reversal of his federal programs bribery conviction has ignited old debate about federal prosecutors in the state were targeting trial lawyers, who’ve been big donors to Democrats.

Minor, a successful Mississippi trial lawyer and friend of Dickie Scruggs, provided personal guarantees for loans to  judges John Whitfield and Wes Teel, then used cash and third parties to pay them off. Scruggs, the imprisoned trial lawyer who earned fame and fortune taking on tobacco companies, served as an intermediary in paying off one Teel loan in full. Both judges were accused of ruling in Minor’s favor in civil cases, in return for the loan guarantees.

In erasing the federal programs bribery convictions, the Fifth Circuit held on Friday that judges who accepted the alleged bribes didn’t do so in connection with business or transactions of the Mississippi Administrative Office of the Courts, which pays for judges’ staff salaries. The AOC is state entity that had received federal funding and thus was the nexus for the prosecution’s federal programs bribery theory.

The Fifth Circuit ruling doesn’t exonerate Minor. Rather, it says the bribery scheme wasn’t a federal crime.

Whitfield used the loans to defray his campaign costs and to put a down payment on a house, the evidence at trial showed. Around that time, in 1998, Minor filed a personal injury suit in Whitfield’s court. He requested a bench trial — more than strange, considering the nature of the suit — and the two men sidestepped the court’s random assignment mechanism so Whitfield would hear the case. Minor won, reaping more than $3 million in “soft” damages for himself and his client.

The charges didn’t amount to a federal crime because the judges were allegedly bribed in connection with their judicial duties, not their administrative duties, the court held.  Minor, Whitfield and Teel will be re-sentenced on all the remaining counts.

The Fifth Circuit preserved convictions related to honest-services fraud, but the Supreme Court was hostile to the law in arguments here last week. The honest-services statute makes it a crime to “deprive another of honest services.” Justice Antonin Scalia compared it to a law that says, “Nobody shall do bad things.”

Minor’s supporters have long maintained  his prosecution was motivated by politics, and the opinion handed down on Friday was interpreted variously.

Lange, the co-author of Kings of Tort,  said the ruling shot holes in the theory among liberals “who believe that his conviction resulted from some sort of conspiracy in a prior administration.”

“Obviously, the 5th Circuit didn’t agree,” Lange wrote.

Columbia law professor Scott Horton, who has written extensively about the Minor case, said even if Minor, Whitfield and Teel go free, the prosecutions have had major impact on the state. Campaign contributions to Democratic judicial candidates ceased after the cases were brought, allowing Republicans to take control of Mississippi’s judiciary. Horton described the political backdrop in this piece on Monday:

The Bush-era Justice Department’s case was an attempt to criminalize campaign funding practices in which an attorney supported the election campaign efforts of Democratic judges. No comparable cases were ever brought against Republican judges or those who financed them. The charges took the novel view that campaign contributions and campaign finance assistance can be viewed as bribes paid to judges. But this rationale was applied to only one side of the political ledger.

Minor was prosecuted Assistant U.S Attorneys Ruth Morgan and David Fulcher in Mississippi’s Southern District. Dawson and his partner, Assistant U.S. Attorney Bob Norman, were recently honored by the Justice Department for their work on the Scruggs and related cases.

The Supreme Court gave itself another opportunity yesterday to look at a case involving “honest services” fraud — a popular charge used by the Justice Department.

The high court granted certiorari Monday to the “honest services” fraud case of former Alaska Rep. Bruce Weyhrauch. The former lawmaker said prosecutors can’t claim he defrauded Alaskans when he secretly tried to work for an oil field business while the legislature was in session, McClatchy reported. He said his actions were legal under state law and shouldn’t be illegal under federal “honest services” mail fraud laws, according to McClatchy.

We previously reported that DOJ has used “honest services” charges as the lead charge against 79 defendants in fiscal 2007, up from 28 in 2000. We noted that Northern District of Illinois U.S. Attorney Patrick Fitzgerald has made liberal use of the statute.

In April, the Supreme Court agreed to review the 2007 conviction of former newspaper mogul Conrad Black, who was prosecuted by Fitzgerald’s office. Black, who controlled Hollinger International, the company that owned the Chicago Sun Times among other publications, was found guilty of not “honestly serving” the company’s shareholders by diverting corporate funds to his own pockets.

By taking on the Weyhrauch and Black cases, the Supreme Court will be able to completely review how “honest services” fraud is applied to cases involving the public and private interests. A severe limitation on the law’s use could be unwelcome news for the Justice Department, which has used the statute in the successful prosecutions of imprisoned Mississippi trial attorney Paul Minor in 2007 and ex-lobbyist Jack Abramoff in 2008. The department is also using the statute in the prosecution of Abramoff associate Kevin Ring.

The lawyer for imprisoned Mississippi trial attorney Paul Minor is the latest to allege that Public Integrity Section prosecutors supervised by William Welch II withheld favorable evidence from the defense, The Associated Press reported.

Paul Minor (Getty Images)

Minor was a major Democratic political donor who was convicted in 2007 of “honest services mail fraud” for guaranteeing loans for Mississippi Supreme Court  Justice Oliver Diaz and his wife. The loans were used for Diaz’s campaign for the state Supreme Court. Harper’s Scott Horton ridiculed the “honest services mail fraud” charge here in a skeptical analysis of the case.

In a June 24 letter to Attorney General Eric Holder, Minor lawyer Hiram Eastland Jr. said DOJ prosecutors “under the management of William Welch” improperly convinced a district court that the government didn’t need to prove any quid pro quo to win conviction. A jury failed to convict Minor in a first trial in 2005, when the government had been held to the higher standard of proof requiring prosecutors to prove that Diaz had taken official actions in exchange for Minor’s loan guarantee, Eastland wrote.

“The Justice Department prosecutors over whom Mr. Welch had senior management responsibility were overreaching in their representation of the law,” Eastland wrote. The letter was cc’ed to Criminal Division chief Lanny Breuer and Kevin Ohlson, Holder’s chief of staff.

Eastland also told The AP the corruption charges against his client should be thrown out due to Brady concerns. “This is like the Stevens case on steroids,” Eastland told The AP. One government witness never stated in 17 interviews with government agents and before grand juries that Minor had told him to lie to the FBI. But the witness gave testimony “to that effect” at trial, Eastland wrote.

Welch supervised the bungled prosecutions of former Sen. Ted Stevens (R- Alaska) and two Alaskan lawmakers, and also supervised the Minor prosecution team. Eastland said Welch “allowed ground level prosecutors to engage in the blatantly improper, unethical and unconstitutional trial tactic of withholding exculpatory evidence from defendants,” according to The AP.

Eastland has said the prosecution of Minor was politically motivated. The Office of Professional Responsibility is reviewing allegations of selective prosecution against Minor, Diaz and other Democrats in other states, including ex-Alabama Gov. Donald Siegelman, Georgia Thompson in Wisconsin and Dr. Cyril Wecht in Pennsylvania.

Diaz’s wife, Jennifer, recently filed allegations against former U.S. Attorney for the Southern District of Mississippi Dunn Lampton and his cousin, Leslie Lampton, accusing them of illegally obtaining and distributing her private financial records in an attempt to remove her husband from office. Diaz was twice acquitted of tax charges in Missisippi. Lampton’s office didn’t prosecute him but assisted in the case.

As for Minor, his appeal before the 5th U.S. Circuit Court of Appeals is pending.